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Dismissal for complaining about manager ruled as unfair

View profile for Hannah Maxwell
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Dismissal for complaining about manager ruled as unfair

Michael Austin, a paint sprayer, has been awarded £28,560 after his dismissal from A1M Retro Classics (A1M) was ruled unfair. 

Mr Austin was employed by A1M for 5 years until he was summarily dismissed on 18th February 2020.

On 13th February 2020, Mr Austin was involved in what was described to be an “extremely heated discussion” with the managing director, Matthew Robinson, following an allegation of poor work being carried out by A1M. Mr Robinson was agitated by the allegation and concerned about the potential ramifications for the business. 

Mr Austin provided Mr Robinson with some feedback, advising that “it was often said that cars were overpriced” to which Mr Robinson started shouting and criticising Mr Austin’s competence, rudely replying when Mr Austin pointed this out.

That evening Mr Austin posted a comment on Facebook stating, “I don’t think I’m a bad person, but I don’t think I have ever felt so low in my life after my boss’s comments today”. A number of people made comments on this posting, aimed primarily at trying to reassure Mr Austin, some of which were appropriate and some of which were inappropriate and made reference to Mr Robinson’s sexuality.

Mr Robinson became aware of the post and the comments made by other users. He felt that the comments would place A1M into disrepute. Mr Robinson asked a manager to help him download the comments as he was not a Facebook user and did not fully understand the platform.

On 17th February 2020, the workshop manager asked Mr Austin to attend a meeting in Mr Robinson’s office. Mr Austin was led to believe that the meeting was to discuss his use of social media. He was advised to take a witness but was told that his witness was not allowed to speak during the meeting. 

It was only during the meeting itself that it transpired that the meeting was in fact a disciplinary hearing. Mr Austin was told that it was in the company handbook that employees must not discuss the company on social media. 

Mr Austin was subsequently suspended and, on 18th February, was informed that he had been dismissed on the grounds of gross misconduct.

The tribunal ruled that A1M had failed to satisfactorily investigate the alleged misconduct and that Mr Robinson had assumed a number of things, for example that the post was publicly available. There was no rule that employees must not discuss the company on social media and the company’s social media policy did not require employees to police the comments of others. It went on to say that Mr Robinson had “unreasonably confused what was required of an employee by the social media policy”. 

To add insult to injury, the Tribunal found that Mr Austin had not been given sufficient notice of the meeting or any advance knowledge of what was being alleged against him, so he could prepare any kind of defence against it. Whilst the tribunal accepted that Mr Austin was given the right to be accompanied, it was concluded that Mr Austin was not given the choice of accompaniment by a trade union representative.

It is hard to see how the comment made by Mr Austin, by itself, was enough to found a fair dismissal, but all of the points of criticism by the tribunal are easy procedural steps to get right if disciplinary matters are approached methodically. In many cases, getting the procedure right is the difference between a fair and unfair dismissal.

If you would like advice on disciplinary proceedings in employment law, please contact me on 01206 217341 or email hannah.maxwell@birkettlong.co.uk

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